Referrers' Corner

We have taken the guesswork out of it for you! Read on to find out about special conditions and what to do if they arise. 

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Special Conditions

1. Pool Safety Certificate

a. This contract is conditional upon the seller providing to the buyer a
current pool safety certificate on or before settlement.

b. If the seller fails to provide the certificate by settlement, then the sum of
Five thousand dollars ($5,000.00) will be retained from the sale
proceeds and held in the buyer’s solicitor's trust account.

c. If the certificate has still not been provided to the buyer within sixty (60)
days of settlement, then the seller irrevocably authorises the release of
the Five thousand dollars ($5,000.00) to the buyer in full and final
satisfaction of this clause.

d. The standard condition of the contract relating to Pool Safety is deleted.

2. Soil Test

a. This contract is conditional upon the buyer obtaining a satisfactory
soil test by an engineer on the property which is entirely satisfactory
to the buyer within fourteen (14) days from the date hereof.


b. The seller agrees to permit the engineer to enter upon the land for
the purpose of carrying out the soil test.


c. The costs of obtaining such soil test shall be payable by the buyer.


d. The buyer must give notice to the seller in writing on or before the due date
that:
i. the soil test is not satisfactory to the buyer and the buyer
terminates this contract; in which event the deposit is to be
refunded in full. The buyer must act reasonably; or


ii. this clause has either been satisfied or waived by the buyer.


e. The Seller may terminate this contract by notice in writing to the buyer if
notice is not given by 5.00 pm on the due date. This is the seller's only
remedy for the buyer's failure to give notice.


f. The seller's right under this clause is subject to the buyer's continuing right
to terminate this contract under subsection (a) or waive the benefit of this
condition by giving written notice to the seller of the waiver.

3. Subject to Sale

a. This contract is subject to the buyer entering into a contract for the sale
of their property situated at ADDRESS by DATE and that contract being unconditional on or before DATE.


b. This contract is subject to the buyer completing the sale of their
property pursuant to the contract for such sale on or before DATE.


c. This special condition has been inserted for the benefit of the buyer who
may waive the benefit of the condition by notice in writing to the seller
on or before the date for satisfaction of the condition.


d. Should section (a) or (c) of this special condition not be satisfied by the
relevant dates and the buyer has not waived the benefit of the
conditions by notice in writing to the seller on or before those dates then
either party may terminate this contract by notice in writing to the other
and provided the buyer has not been in default of**his/her/their
obligations hereunder the deposit shall be refunded in full.


e. The buyer shall take all reasonable steps to satisfy sections (a) and (b) of
this special condition on or before the due dates for satisfaction.

4. Deceased Estate

a. This contract is conditional upon the registration in the Department of
Natural Resources of a transmission by death effecting registration of ownership of the property in the name of the seller as **executor/executrix/personal representative of the estate of ......................................{name of deceased) (‘the condition”) on or before the ............ .............................. (the “registration date”) or such later date as the parties may mutually agree upon.


b. If the condition is not satisfied by the registration date for any reason not
attributable to the seller's own default the buyer may terminate this contract by notice in writing given to the seller in which event all deposit and other monies received by the seller or stakeholder (as the case may be) on account of the purchase price shall be refunded to the buyer by the seller or stakeholder (as the case may be).


c. If the condition is satisfied before the registration date, the seller shall
give notice in writing of such satisfaction to the buyer's solicitors promptly and completion shall take place seven (7) days after the
receipt by the buyer's solicitors of the written notification from the seller that the condition has been satisfied.

5. Sunset Clause

a. The buyer acknowledges and agrees that in view of the fact that this contract may remain conditional for some weeks, the seller shall be at liberty to continue to advertise the property (situated at. ) for sale and negotiate with other


b. buyers for the sale of the property. If the seller receives an offer of a contract with another buyer in respect of the property the subject of this transaction, the seller may by notice in writing call upon the buyer to elect to make this contract unconditional within (.................) days.


c. The buyer shall notify the seller of the buyer's election in this regard within (..............) days of having received the seller's notice.


d. In the event that the buyer elects to terminate this contract the deposit
shall be refunded to the buyer without deduction and neither party shall have any claim against the other arising out of this contract.


e. If the buyer does not respond to the seller's notice within the …….........( ) day period specified the buyer shall be deemed to have elected to terminate this contract and the seller's agent shall forthwith upon expiration of the ( ) day period be authorised to refund the deposit to the buyer in full.


f. If the buyer elects to make the contract unconditional, then settlement shall
be 14 days after the seller is notified of the buyer's election.

6. Seller Giving Vacant Possession

  1. This contract is conditional upon the buyer receiving vacant possession of the property upon settlement. If vacant possession cannot be given and no other agreement has been reached between the parties, the buyer may elect to terminate this contract by notice in writing to the seller and this contract shall be at an end and all deposit monies paid to the seller by the buyer shall be refunded in full.

  2. This shall be the buyer's only remedy.

  3. This clause is for the buyer's benefit and may be waived before Settlement.

7. Body Corporate Consent

  1. The contract is subject to and conditional upon the seller prior to settlement obtaining the consent of the Body Corporate allowing the owner of this property to ###

  2. If the seller is unable to obtain this consent by settlement, then either party may terminate the contract upon which the deposit will be refunded to the buyer.

  3. This clause is inserted for the benefit of the buyer who may waive the benefit of the clause at any time prior to settlement or the contract being terminated.

8. Searches

a. This contract is conditional upon the buyer's solicitor's approval as to the title encumbrances, liens, easement, and any other regulatory impositions that may relate to the subject property within fourteen (14)
days of the date hereof.


b. The cost of obtaining the search shall be payable by the buyer.


c. Should the buyer's searches prove unsatisfactory then the buyer may terminate this contract by notice in writing given on or before the due
date in which event the deposit shall be refunded in full.


d. This clause is inserted for the benefit of the buyer and the buyer may waive the benefit of this condition by notice in writing to the
seller.


e. If the buyer does not terminate the contract by 5.00 pm on the due date, the buyer will be treated as being satisfied with the results of the
search.

9. Due Diligence/Buyer’s Investigations

a. The seller agrees to consent to the buyer making such investigations into the property as the buyer may choose to make into the proposed use of the land by the buyer and the conditions or requirements that Council may impose for such proposed use.


b. The seller agrees, upon the request of the buyer, to sign all such documents, forms or consents as may be required to enable the buyer to carry out its investigations.


c. The costs of making all such investigations shall be payable by the buyer.


d. This contract is conditional upon the buyer being satisfied with the results of its investigations before the expiration of three weeks from the date hereof.

e. The buyer must give notice to the seller in writing on or before the expiration of a further twenty-one (21) days that:


i. the results of its investigations are not satisfactory to the buyer and the buyer terminates this contract. The buyer must act reasonably; or

ii. this clause has either been satisfied or waived by the buyer.


f. The seller may terminate this contract by notice in writing to the buyer if notice is not given under clause 5 by 5.00 pm on the twenty-first day.
This is the seller's only remedy for the buyer's failure to give notice.


g. The seller's right under this special condition is subject to the buyer's continuing right to terminate this contract under subsection (e) or waive the benefit of this condition by giving written notice to the seller of the waiver.

10. Council Approval

a. The seller warrants that as at the settlement date that:


i. all permissions consents and approvals required from the relevant local council or other body having jurisdiction for the construction of the improvements on the land and its present use have been obtained;


ii. there will be no outstanding requisitions in respect of the improvements on the land; and


iii. all improvements on the property will comply with council requirements and by laws in every respect.

b. If at the settlement date the warranties in subsection (a) above are not true in all respects, then the buyer may by notice in writing to the seller given on or before the settlement date terminate this contract in which event the deposit shall be refunded to the buyer in full.


c. It will be sufficient proof that a structure is not council-approved if it does not appear on the building records search.

11. Back Up Contract

a. This contract is conditional upon:


i. the seller being released from a certain contract of sale entered into by the seller with respect to the subject property (Such release being evidenced by letter executed by the buyer or the buyer's solicitors);


ii. such release to be received by the seller on or before ...........................

b. Forthwith upon receipt of the letter or release the seller shall give notice in writing thereof to the buyer and the within contract should proceed.


c. If the seller is not released from the contract referred to in subsection (a) above by the due date this contract will be at an end and the deposit is to be refunded to the buyer in full.

12. Subject to FIRB Notification

a. The buyer will submit the proper notice (“the application”) to the FIRB in accordance with the Foreign Acquisitions and Takeovers Act 1975
within 14 days of the Contract Date and will comply with all requests for further information and take all steps necessary to pursue the application.


b. The seller will provide the buyer with all information that is reasonably available to the seller as may be required by the Treasurer or the FIRB for considering the application.


c. This contract is subject to and conditional upon the buyer receiving no notice or order from the Treasurer of the Commonwealth of Australia
(“the Treasurer”) or the Foreign Investment Review Board (“the FIRB”) that the acquisition of the property by the buyer is prohibited under the
Foreign Acquisitions and Takeovers Act 1975 (“the Act”), within 45 days of the application being submitted. Once the buyer is aware of the outcome of the application, the buyer must promptly notify the seller or seller's solicitor in writing of the same.


d. If the buyer receives a notice or an order from the Treasurer or the FIRB prohibiting the acquisition of the property or imposing conditions on the acquisition which are not satisfactory to the buyer, the buyer may rescind the contract by notice in writing to the seller or seller's solicitors,
in which case the seller shall return all monies, including the deposit, to the buyer. The buyer is to act honestly and reasonably in deciding if the
conditions are satisfactory.

13. Contemporaneous Settlement

a. This contract is conditional upon a contract of sale dated day of, between and for the sale of (another contract) being settled and completed contemporaneously with this contract.


b. Should completion of both contracts not take place because they cannot settle at the same time or any other date as mutually agreed between the parties, due to no fault of any party, then the agreement may be terminated by either party by notice in writing to the other.


c. Should either contract not settle due to the fault of the buyer then the seller may terminate this contract and the provisions of this special condition of the terms of contract shall apply.

14. Structure Not Approved

a. The buyer acknowledges that the STRUCTURE erected or constructed on the subject land may have been constructed without approval from the relevant local authority and the buyer covenants and agrees that they will not raise any objection, requisition or make any claim for compensation in relation to it now or in the future.

15. Deposit Less Than Commission

  1. The parties acknowledge that the deposit held by the stakeholder/deposit holder is an amount less than the commission payable to the seller's agent and the Seller irrevocably authorises and directs the buyer and the buyer's solicitors to pay to the seller's agent from the balance of purchase monies contemporaneously with settlement, the amount of the commission payable, less the amount held by the seller's agent as stakeholder/deposit holder.

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